Swift v. Allen

55 Ill. 303

• Court: Illinois Supreme Court
• Decided: September 15, 1870
• Status: Published

Opinion

Mr. Chief Justice Lawrence

delivered the opinion of the Court:

This was an action of ejectment brought by the appellants. Both parties claimed under Levi Lee. The plaintiffs claimed under an attachment, judgment and execution against Lee; the defendant, under a conveyance from him, made before the attachment was levied. The plaintiff sought to impeach the title of the defendant, as having been made to defraud creditors. The defendant insisted, and the court held, that a former decree of the court, on the chancery side, rendered in a suit between the same parties brought for the purpose of setting aside defendant’s title, was conclusive upon this question. By that deer.ee the complainants’ bill was dismissed, in the following words:

“ And now come the parties, by their respective solicitors, and on hearing the bill herein, it is ordered by the court that said bill be dismissed.”

At a subsequent term this decree was amended, on motion, by adding these words :

“ Upon the ground that a court of law is the proper forum in which to try and determine the matters in controversy in this suit.”

The question presented by this record is, the effect of this amendment.

It is conceded the decree, as originally made, would bar the plaintiffs herein from re-opening the question of fraud. It is claimed, however, that the amendment so changes the decree that it is to be considered as a decree dismissing the bill without prejudice. This would, no doubt, be a proper construction of the amendment, and its materiality is thus apparent. This brings us to the question of the power of the court to make it.

The only notice given- to the defendants in the chancery suit, of the intention to move for an amendment of the decree, was a verbal notice to their solicitor, and a written notice addressed to the defendants, Lee and Webster, posted on the court house door, seven days before the motion was made. It is also claimed that Lee was present in the court house when the motion was discussed, and that he had received verbal notice of its pendency.

All this, however, was no notice, whatever, to Webster, the real party in interest, who claimed by deed from Lee. The notice to the solicitor was of no avail, because his connection with the suit had terminated with the final decree, even if a merely verbal notice could be held sufficient in any case—a position to which we by no means assent. So, also, of the notice to Lee. It was not only merely verbal, but if it had been in writing, it could not affect the rights of Webster, who claimed to own the property by virtue of a deed from Lee. Neither is notice to be presumed from posting on the court house door. We have no statute authorizing notice to be thus given in proceedings of this character, and the posting of this notice was but an idle ceremony. Webster was a resident of Ohio, and there is no pretense that the notice was ever seen by him.

The amendment having, then, been made without notice to the defendant in this suit, it is, as to him, a nullity. The court acted without jurisdiction. It could no more impair his rights by an order made in the guise of an amendment, without first bringing him before the court, than it could do so by pronouncing a new decree. The order making the amendment was not merely erroneous, as suggested by counsel. It was absolutely void, for want of jurisdiction, and can be assailed in a collateral as well as in a direct proceeding.

Judgment affirmed.